Lemoine v. Mossberg Corp. - Complaint

Case 0:18-cv-60902-CMA Document 1 Entered on FLSD Docket 04/20/2018 Page 1 of 9
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
Case No.
ERIC LEMOINE, an individual

Resident of Florida, and TTC PERFORMANCE
PRODUCTS, INC., d/b/a BLACK ACES
TACTICAL, a corporation registered under the
Laws of Florida,
Plaintiffs,
v.
MOSSBERG CORPORATION, a Delaware

Corporation, and O.F. MOSSBERG & SONS,
INC., a corporation residing in Connecticut,
Defendants.
__________________________________/
VERIFIED COMPLAINT FOR PATENT INFRINGEMENT:

INJUNCTIVE RELIEF SOUGHT
Plaintiffs, ERIC LEMOINE AND BLACK ACES TACTICAL (collectively, “Black
Aces”), by and through undersigned counsel, sues Defendants O. F. MOSBERG
CORPORATION, and O.F. MOSSBERG & SONS, INC., (collectively, “MOSSBERG’), for acts
of patent infringement, and alleges as follows:
NATURE OF THE ACTION
1. This is an action for patent infringement in connection with MOSSBERG’s making,
importing, offering for sale and selling shotguns that contain and comprise patented proprietary
technology covered by a United States Patent duly owned and/or exclusively licensed and used
by Lemoine and Black Aces. MOSSBERG then used the patented technology to manufacture
firearms and shotguns that comprise Plaintiff’s shotgun magazine receiver assembly, and these
firearms and shotguns have been widely advertised online, sold, offered for sale, and/or
1
displayed and offered through important and relevant weapon industry trade shows throughout
the United States and through a vast dealer network. MOSSBERG's infringing conduct has
damaged Black Aces and inflicted irreparable harm.
2. Black Aces seeks, inter alia, disgorgement of MOSSBERG’s profits from the sale of
Infringing products, and injunctive relief.
JURISDICTION AND VENUE
3. This Court has original jurisdiction over the claims for patent infringement under
28 U.S.C. §§ 1331 and 1338(a) in that said claims arise under the Patent Laws of the United
States, 35 U.S.C. § 1 et seq.”
4. This Court has in personam jurisdiction over MOSSBERG pursuant to FLA. STAT. §
48.193, in that: (a) MOSSBERG is residing, operating, conducting, engaging or carrying on a
business, in the State of Florida; (b) MOSSBERG has committed tortious acts within the State of
Florida; and (c) MOSSBERG is engaged in substantial and not isolated activity within the State
of Florida.
5. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) because MOSSBERG
has conducted acts in this District, and substantial part of the events giving rise to the claim
occurred in this District.
THE PARTIES
6. Eric Lemoine is a resident of Florida and owns Black Aces. Black Aces is a corporation
organized and existing under the laws of Florida, and has operated in, and sold goods in the
United States, and specifically, in the Southern District of Florida, and does so under exclusive
permission from Lemoine.
2
7. Upon information and belief, MOSSBERG CORPORATION is a corporation organized
and existing under the laws of the State of Delaware, with its principal place of business located
at 7 Grasso Avenue, North Haven, CT, and has orchestrated all of the acts complained of.
8. Upon information and belief, O. F. MOSSBERG & SONS, INC., resides in Connecticut,
and has the same residence and location as Defendants MOSSBERG CORPORATION, and
actively controls the activities and the acts complained of.
BLACK ACES’ BUSINESS
9. Well prior to the acts complained of, Black Aces has been involved in the business of
manufacturing high quality firearm components and shotguns, comprising patented and cutting
edge technology, that are sold in a variety of markets.
10. Black Aces firearm components are uniquely designed and have been enormously
successful in the market, and have met substantial success in the relevant market, and channels
of trade.
11. Black Aces products are sold throughout the United States and are sold to businesses and
directly to the public through “business-to business” dealer channels and through retail channels
respectively.
12. As a result of the originality and high quality of its products, Black Aces has
developed a reputation for excellence and innovation which has generated several million dollars
in sales, and many loyal customers.
BLACK ACES’ PATENT
13. On June 24, 2014, U.S. Patent No. 8,756,846 (the “’846 Patent”), for a shotgun magazine
receiver assembly, was issued by the United States Patent and Trademark Office, that includes a
receiver body having a trigger assembly opening, a removable magazine opening, a shotgun
3
barrel opening, a shell ramp, and a bolt and slide. A true and correct copy of the ‘846 Patent is
attached as Composite Exhibit “A” hereto.
14. Lemoine is the owner of the ‘846 Patent and Black Aces has the exclusive right to use,
make, sell and offer for sale shotguns with the patented technology.
15. The ‘846 Patent is in full force and effect as of the date of this Verified Complaint and all
times relevant to the allegations herein.
16. At all times relevant, Black Aces began manufacturing and selling a line of shotguns and
shotgun magazine receivers embodying the technology covered by the ‘846 Patent. These
products are made in America, use American materials, and made by American craftsman.
17. Black Aces’ shotguns and shotgun magazine receivers embody the technology claimed
in the ‘846, have been a market success, and are marked with Plaintiffs’ ‘846 Patent number in
accordance with the requisite statutes.
MOSSBERG’S ACTS OF INFRINGEMENT
18. On February 27, 2018, Black Aces purchased a Mossberg Model 590M model shotgun.
19. The purchased shotgun contains an infringing shotgun magazine receiver assembly.
20. The parties have a history of negotiations and discussions regarding the licensed use of
Black Aces’ patented technology, which includes the following communications and meetings:
A. In February 2013, Tom Taylor and John MacLellan, both known to be agents of,
representatives of, and employees of MOSSBERG, entered Black Aces’ booth at the Acusport
business conference, in Fort Worth Texas, where Black Aces was displaying its patent-pending
receiver line. Tom Taylor specifically inquired about the patent status. Mr. Taylor was told that
the receiver is patent pending. They exchanged business cards, and had agreed to speak further
in the future. Attached as Exhibit B is an email trail confirming the meeting at the Acusport
show.
B. In September 2013, Tom Taylor and Lemoine have a telephone conference. Tom
Taylor requests a sample receiver and sample weapon. Tom Taylor stated that Black Aces
should prepare pricing in manufacturing capabilities. Black Aces becomes further aware
MOSSBERG is interested the patented technology. Subsequent to this meeting, Lemoine
shipped several of the patent pending receivers, magazines and a complete shotgun to Mossberg
4
for their evaluation and documented the shipment in Black Aces’ official ATF acquisition and
disposition book.
C. After receiving the evaluational units, in October 2013, Lemoine meets with Tom
Taylor at NASGW, in Dallas Texas. Black Aces was informed that it will be authorized to order
parts from MOSSBERG, and MOSSBERG will monitor the quantity of parts to gauge popularity
in the weapon platform. MOSSBERG is considering an OEM deal.
D. In February 2014, Black Aces makes its first bulk order with OF MOSSBERG &
SONS, INC, and in September 2014, Black Aces receives its first order from MOSSBERG, and
throughout the remainder of 2014 Lemoine demonstrates there is significant market interest in a
shotgun having Mossberg components and the now patented magazine receiver.
E. In August 2015, John MacLellan, Vice President of Sales and Marketing, directs
MOSSBERG’s Director of Sales, Bill Brown, to meet with Black Aces at NASGW for October
2015, and the parties agree on an appointment time and date. At that meeting, Bill Brown stated
that he was instructed to follow up, and that there would be an opportunity on a mass-market
civilian level for Black Aces. (Exhibit C).
G. In September 2015, Bill Brown requested that a DT model be delivered to

MOSSBERG. A DT model is short barrel 12 gauge model shotgun that uses the Black Aces
Tactical patented receiver. It is around this time that Mr. Tim Blazek purchases from Black Aces
several of the patented shotgun magazine receivers. The purchase was curious given that the
shipping address was the address for OF MOSSBERG & SONS. Tim Blazek is Chief of
Engineering at Mossberg. (Exhibit D and E).
H. In October 2015, Bill Brown and Black Aces have their scheduled meeting. None
of what Black Aces were being led to believe about mass civilian markets was discussed. Instead
MOSSBERG, through Bill Brown, stated that MOSSBERG was not intending to be competition
with Black Aces. Towards the end of the meeting, Lemoine handed a shotgun containing the
patented magazine receiver to Bill Brown and requested that they negotiate a licensing
agreement for the patented receiver. Bill Brown stated that MOSSBERG would consider it if
they were not so involved with another project, "though the project is nothing like yours."
I. In February 2018, after MOSSBERG released the 590M, Black Aces attended a
trade show alongside MOSSBERG, who were displaying the 590M. Lemoine confronted Bill
Brown and told him they needed to have a sit-down about the 590M, as it contained the
infringing technology. Bill Brown agreed that the parties would be better off working together,
and that he would set up a meeting after his return to Connecticut. No such meeting has been
scheduled.
21. Black Aces received no further communications from MOSSBERG in connection
with the patented shotgun magazine receivers provided to MOSSBERG, and it was later
discovered that MOSSBERG actually used these products from Black Aces to make and design
5
an infringing competitive shotgun with a shotgun magazine receiver that embodies and
incorporates the patented technology of the ‘846 Patent.
22. MOSSBERG are making, offering for sale, selling, displaying, and promoting an
infringing and competing product, and are showing the infringing product, offering it for sale,
and are actually selling an infringing product through its own channels of trade, including
through its dealer network.
23. MOSSBERG have continued to make, have made, sell, and/or offer for sale, shotguns
that embody Black Aces’ patented technology, despite having actual knowledge of the claims of
infringement.
24. MOSSBERG sells shotguns that infringe Black Aces’ ‘846 Patent, and are doing so with
actual knowledge of Black Aces rights in the patented technology.
25. MOSSBERG have offered for sale and/or sold the infringing shotguns, or parts,
throughout the United States, including within this District.
26. At all times, MOSSBERG have orchestrated all of the acts complained of and has
participated in acts of infringement with full knowledge of Black Aces’ patent rights.
27. On information and belief, MOSSBERG have sold, offered for sale, made, or have had
made infringing shotguns throughout the United States with actual knowledge that they comprise
technology embodied in the ‘846 Patent.
28. MOSSBERG’s shotguns contain in many respects virtually identical copies of Black
Aces’ patented technology, and are doing so to gain an unfair advantage in the market by making
and selling a competing product under the MOSSBERG trademarks.
29. Clearly, MOSSBERG’s acts, and their products, support allegations of patent
infringement, and such acts are willful.
6
COUNT I - INFRINGEMENT OF THE ‘846 PATENT
30. Black Aces re-alleges and incorporates hereto by reference paragraphs 1-29 of this
Verified Complaint as though fully set forth herein.
31. MOSSBERG have infringed and continue to infringe the ‘846 Patent. MOSSBERG
have made, sold and offered for sale shotguns that are virtually identical to the design claimed in
the ‘846 Patent, and will continue to do so unless enjoined by this Court.
32. In addition, and through its dealer network have induced infringement of the ‘846 Patent
by others and has committed acts of contributory infringement of the ‘846 Patent.
33. MOSSBERG’s infringement of the ‘846 Patent has been willful and malicious and with
actual or constructive knowledge that Black Aces is the owner of a patent claiming the infringed
technology.
34. Black Aces have sustained damages as a result of the infringing acts of Defendants.
35. Plaintiffs have suffered and will continue to suffer irreparable harm unless
infringement of the ‘846 Patent is enjoined.
WHEREFORE, Plaintiffs, ERIC LEMOINE and BLACK ACES TACTICAL pray that
the Court:
A. Enter a judgment that MOSSBERG have infringed, induced infringement and
contributed to the infringement of U.S. Patent No. 8,756,846
B. Order MOSSBERG to pay damages under 35 U.S.C. §285 and §289 to adequately
compensate Plaintiffs for their acts of patent infringement, including an award of MOSSBERG’s
profits from its infringement of U.S. Patent No. 8,756,846 together with pre- and post-judgment
interest;
7
C. Find that MOSSBERG’s patent infringement was willful and malicious and award treble
damages to Plaintiffs under 35 U.S.C. 284;
D. Find this to be an exceptional case of patent infringement and award reasonable
attorneys’ fees to Plaintiffs under 35 U.S.C. §285;
E. Award such other and further relief as the Court deems just and equitable
VERIFICATION
I have read the factual allegations contained in the foregoing Complaint and I declare
under penalty of perjury under the law of the United States of America that these factual
allegations are true and correct, and for those allegations that are based upon information and
belief, I believe those to be true and correct.
Dated: April 15, 2018 By:/s/Eric Lemoine

Eric Lemoine
(original signature held in trust)
Dated: April 15, 2018 Respectfully submitted,
By:/s/ Louis R. Gigliotti/

Louis R. Gigliotti, Esq.
Louis R. Gigliotti, PA
Florida Bar No.: 71935
1605 Dewey Street
Hollywood, FL 33020
Ph: (954) 471 4392
lgigliotti@bellsouth.net
8
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the forgoing was filed ECF and
served via electronic mail on this 15th day of April, 2018.
By: /s/Louis R. Gigliotti

Louis R. Gigliotti, Esq.
9
Case 0:18-cv-60902-CMA Document 1-1 Entered on FLSD Docket 04/20/2018 Page 1 of 14
AO 440 (Rev. 06/12) Summons in a Civil Action

for the
SouthernDistrict
__________ Districtof
of__________
Florida
ERIC LEMOINE, an individual )

Resident of Florida, and TTC PERFORMANCE )
PRODUCTS, INC., d/b/a BLACK ACES )
TACTICAL, a corporation registered under the )
Plaintiff(s) )
)
v. Civil Action No. 18-cv-60902
)
MOSSBERG CORPORATION, a Delaware )
Corporation, and O.F. MOSSBERG & SONS, )
INC., a corporation residing in Connecticut, )
)
Defendant(s) )
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) O.F. MOSSBERG & SONS,

INC.
7 Grasso Avenue
North Haven, CT 06473
c/o Registered Agent

Joseph H. Bartozzi
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are: Louis R. Gigliotti, PA
1605 Dewey Street
Hollywood, FL 33020
(954) 471 43921
Email: lgigliotti@bellsouth.net
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 18-cv-60902
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)

was received by me on (date) .
’ I personally served the summons on the individual at (place)

on (date) ; or
’ I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individual’s last known address; or
’ I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)
on (date) ; or
’ I returned the summons unexecuted because ; or
’ Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ 0.00 .
I declare under penalty of perjury that this information is true.
Date:
Server’s signature
Printed name and title
Server’s address
Additional information regarding attempted service, etc:
Print Save As... Reset

AO 440 (Rev. 06/12) Summons in a Civil Action

for the
SouthernDistrict
__________ Districtof
of__________
Florida
ERIC LEMOINE, an individual )

Resident of Florida, and TTC PERFORMANCE )
PRODUCTS, INC., d/b/a BLACK ACES )
TACTICAL, a corporation registered under the )
Plaintiff(s) )
)
v. Civil Action No. 18-cv-60902
)
MOSSBERG CORPORATION, a Delaware )
Corporation, and O.F. MOSSBERG & SONS, )
INC., a corporation residing in Connecticut, )
)
Defendant(s) )
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) MOSSBERG CORPORATION

7 Grasso Avenue
North Haven, CT 06473
c/o Registered Agent

Joseph H. Bartozzi
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are: Louis R. Gigliotti, PA
1605 Dewey Street
Hollywood, FL 33020
(954) 471 43921
Email: lgigliotti@bellsouth.net
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. 18-cv-60902
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)

was received by me on (date) .
’ I personally served the summons on the individual at (place)

on (date) ; or
’ I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individual’s last known address; or
’ I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)
on (date) ; or
’ I returned the summons unexecuted because ; or
’ Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ 0.00 .
I declare under penalty of perjury that this information is true.
Date:
Server’s signature
Printed name and title
Server’s address
Additional information regarding attempted service, etc:
Print Save As... Reset

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Case 0:18-cv-60902-CMA Document 1 Entered on FLSD Docket 04/20/2018 Page 1 of 9

UNITED STATES DISTRICT COURT

ERIC LEMOINE, an individual

MOSSBERG CORPORATION, a Delaware

VERIFIED COMPLAINT FOR PATENT INFRINGEMENT:

Plaintiffs, ERIC LEMOINE AND BLACK ACES TACTICAL (collectively, “Black

Aces”), by and through undersigned counsel, sues Defendants O. F. MOSBERG

of patent infringement, and alleges as follows:

NATURE OF THE ACTION

1. This is an action for patent infringement in connection with MOSSBERG’s making,

damaged Black Aces and inflicted irreparable harm.

Infringing products, and injunctive relief.

JURISDICTION AND VENUE

States, 35 U.S.C. § 1 et seq.”

48.193, in that: (a) MOSSBERG is residing, operating, conducting, engaging or carrying on a

5. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) because MOSSBERG

occurred in this District.

permission from Lemoine.

7. Upon information and belief, MOSSBERG CORPORATION is a corporation organized

actively controls the activities and the acts complained of.

BLACK ACES’ BUSINESS

edge technology, that are sold in a variety of markets.

in sales, and many loyal customers.

BLACK ACES’ PATENT

attached as Composite Exhibit “A” hereto.

times relevant to the allegations herein.

accordance with the requisite statutes.

MOSSBERG’S ACTS OF INFRINGEMENT

G. In September 2015, Bill Brown requested that a DT model be delivered to

21. Black Aces received no further communications from MOSSBERG in connection

incorporates the patented technology of the ‘846 Patent.

through its dealer network.

actual knowledge of Black Aces rights in the patented technology.

throughout the United States, including within this District.

technology embodied in the ‘846 Patent.

and selling a competing product under the MOSSBERG trademarks.

infringement, and such acts are willful.

COUNT I - INFRINGEMENT OF THE ‘846 PATENT

Verified Complaint as though fully set forth herein.

infringement of the ‘846 Patent is enjoined.

A. Enter a judgment that MOSSBERG have infringed, induced infringement and

contributed to the infringement of U.S. Patent No. 8,756,846

damages to Plaintiffs under 35 U.S.C. 284;

D. Find this to be an exceptional case of patent infringement and award reasonable

attorneys’ fees to Plaintiffs under 35 U.S.C. §285;

belief, I believe those to be true and correct.

Dated: April 15, 2018 By:/s/Eric Lemoine

Dated: April 15, 2018 Respectfully submitted,

By:/s/ Louis R. Gigliotti/

By: /s/Louis R. Gigliotti

AO 440 (Rev. 06/12) Summons in a Civil Action

UNITED STATES DISTRICT COURT

ERIC LEMOINE, an individual )

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address) O.F. MOSSBERG & SONS,

c/o Registered Agent

A lawsuit has been filed against you.

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)

Civil Action No. 18-cv-60902

This summons for (name of individual and title, if any)

’ I personally served the summons on the individual at (place)

’ I served the summons on (name of individual) , who is

’ I returned the summons unexecuted because ; or

I declare under penalty of perjury that this information is true.